Alan Dershowitz, famed Harvard Law School professor and successful trial and appellate lawyer, is lying to you.
He's lying about American law — the subject he ostensibly teaches, the subject on which he is called upon as an expert — for partisan reasons, in order to defend President Trump and discredit Special Counsel Robert Mueller. He's lying repeatedly, shamelessly, and angrily.
Professor Dershowitz's lies are, appropriately enough, of a professorial sort. Trading on his reputation as a legal titan, he's offering normative views (what the law should be) as descriptive views (what the law is.) This is a familiar problem; a few years ago I described it in the context of professors talking about what is or isn't covered by the First Amendment:
Trope Eight: "[Professor] explained . . . ."
Example: "The exhibit of cartoons in Texas might have crossed the line, [Professor] Szmer said."
The media loves to quote a professor to support a viewpoint. This is intellectually neutral: it can be good or bad, depending on the honesty and qualifications of the professor selected.
Quoting professors about law is particularly risky, if your aim is an accurate and informative discussion of free speech law. If you call a physics professor and ask them what will happen if you drop your pencil, and why, he or she will say "it will fall, because of gravity." There is a relatively low chance that the professor will tell you "well, maybe nothing will happen" because he or she harbors the belief that the current gravitic regime is unfair and otherwise problematical. But when you call a professor of law, or political science, or journalism, and ask them a question about whether some controversial speech is protected by the First Amendment, there is an unacceptably high probability that you will get a quote expressing what the professor thinks the law ought to be. Sometimes the professor will flag a statement as an argumentative one, sometimes not. Moreover, some professors . . . . how can one put this delicately? Some law professors' views on how a court is likely to rule on an issue are untainted by exposure to actual courts.
Many professors will give you a sober, accurate and well-informed assessment of how a court would likely approach a given free speech situation. The trick is separating those professors from ones who are out of their field or mere advocates.
Alan Dershowitz, in describing the Special Counsel investigation, is posing as a subject-matter expert but acting like an advocate — and a dishonest one.
The subject of Professor Dershowitz's dishonesty — for the purpose of this essay — is General Michael Flynn's lies to FBI agents and his subsequent guilty plea for lying under 18 U.S.C. section 1001. Professor Dershowitz has asserted, repeatedly, that Flynn did not violate Section 1001 because his lies were not "material" — that is, meaningful. He claims that the lies were not "material" because the FBI knew at the time Flynn was lying, and was not fooled. This is what he said on Fox:
“I hope the judge understands when he has the case tomorrow that Flynn did not commit a crime by lying,” Dershowitz told Fox News host Bill Hemmer. “Because the lie has to be material to the investigation. And if the FBI already knew the answer to the question and only asked him the question in order to give him an opportunity to lie, his answer — even if false — was not material to the investigation.”
Legal analysis on TV is tough; there's very little time to make a complicated point. But Dershowitz has promoted the same point explicitly in writing:
When questioning any suspect, officials should not ask questions whose answers they already know, for the sole purpose of seeing whether the suspect will lie. If they do ask such questions, untruthful answers should not be deemed “material” to the investigation, because the FBI already knew the truth.
This is a perfectly arguable statement of what the law should be. But someone reading Dershowitz's column could be forgiven for thinking that's what the law is — or, at least, that the law is unsettled on the point. The essay utterly fails to divulge that every court to consider the argument has rejected it. Amusingly, Dershowitz's essay asserts that "the first casualty of hyper partisanship is nuance." Apparently the nuance of revealing that your argument has been repeatedly rebuffed was one of those early battlefield deaths.
So: Professor Dershowitz' proposition is that a lie is not material under Section 1001 if the government actor lied to already knows the truth. Every court to consider this argument — and there have been many — has flatly rejected it. See United States v. Mercedes, 401 F. App'x 619, 620 (2d Cir. 2010) (rejecting argument that false statement about citizenship could not have been material because interviewing agent had already "ruled out the possibility of relying on the statement"); United States v. Moore, 708 F.3d 639, 649 (5th Cir. 2013) ("A statement can be material even if the agency already knew the answers given by the defendant and even if the receiving agent knows they are false."); United States v. LeMaster, 54 F.3d 1224, 1230–31 (6th Cir. 1995) "It is irrelevant what the agent who heard the statement knew at the time the statement was made. A false statement can be material even if the agent to whom it is made knows that it is false." ("The fact that the FBI already knew that LeMaster received $6,000 in cash from Spurrier did not affect the materiality of his false statement to the FBI. A false statement 1231 can be material even if the agent to whom it is made knows that it is false."); United States v. Whitaker, 848 F.2d 914, 916 (8th Cir. 1988)("A false statement 1231 can be material even if the agent to whom it is made knows that it is false."); United States v. Goldfine, 538 F.2d 815, 820 (9th Cir. 1976) ("Darrell Goldfine contends, however, that since the Compliance Investigators knew the answer and were not misled by the falsity, the statement was not materially false. . . . [T]he statement here was clearly material.")United States v. Henderson, 893 F.3d 1338, 1351 (11th Cir. 2018) ("Indeed, a false statement can be material even if the decision maker actually knew or should have known that the statement was false.”)
I am not aware of any cases construing Section 1001 that go the other way. Nor is there any credible indication that the United States Supreme Court would go the other way and decide that a false statement to the government does not violate Section 1001 if the government already knows that it is false. To the contrary, the Court has signaled that it would reject that argument. In Brogan v. United States, 522 U.S. 398 (1998), the Supreme Court rejected the argument that there is an "exculpatory no" defense to Section 1001 — that is, the idea that you don't violate Section 1001 if you say "no" when the government asks you if you committed a crime. Rejecting the argument that the statute or the Fifth Amendment required such a defense, the Court also rejected the argument that the investigator's gullibility or lack thereof should be a factor:
Certainly the investigation of wrongdoing is a proper governmental function; and since it is the very purpose of an investigation to uncover the truth, any falsehood relating to the subject of the investigation perverts that function. It could be argued, perhaps, that a disbelieved falsehood does not pervert an investigation. But making the existence of this crime turn upon the credulousness of the federal investigator (or the persuasiveness of the liar) would be exceedingly strange; such a defense to the analogous crime of perjury is certainly unheard of. (Id. at 402.)
In short, there is no credible argument that Alan Dershowitz's repeated assertion is a correct statement of the law. It would be malpractice to advise a client that way. It would be deceitful to tell students. And it's dishonest to tell the nation without telling them that this is your theory of what the law should be, without revealing what the law is. Advocates push the boundaries of the law. They ought to. But honest advocacy doesn't involve lying about the current state of the law. Indeed, lawyers have an ethical obligation to reveal contrary authority when arguing in court, and judges will burn you down to the ground if you don't. I would argue that legal experts — who trade on their reputation for knowing what the law is — have a similar ethical obligation to reveal when existing law flatly contradicts what they are arguing. That's particularly true where, as here, Dershowitz's argument hasn't just not succeeded yet — it's been repeatedly, specifically called wrong by every court to take it up.
The law is clear: the FBI can find irrefutable evidence of a crime, interview you about it, collect lies that it knows are lies and that do not deter it for a second, and then have you charged with lying under Section 1001. Is this what the law should be? No. I think it is not. I've been complaining for years that this definition of materiality lets the government, in effect, manufacture crimes. I've written about how it creates incentives for investigators to conduct interviews for the purposes of soliciting lies when they can't prove an underlying crime. I've pointed out how it's been key to numerous prominent prosecutions. I think it gives the government dangerous and excessive power. But here's the difference: I have not lied to you about what the law is. I've told you what the law is and why I think it's wrong. That's what an ethical "legal expert" should do.
Alan Dershowitz is brilliant and experienced. This is not a failure of knowledge. This is a failure of character.